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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

PROCEEDINGS UNTIL AUGUST 1, 2014 

CASE NO. 3:13-cv-3953-SI 

SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

MARTHA C. MANN 

U.S. Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2664 

Fax: (202) 514-8865 

Email: martha.mann@usdoj.gov 

 

Attorneys for Defendant Gina McCarthy, 

Administrator, United States 

Environmental Protection Agency 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SIERRA CLUB, et al., 

Plaintiffs, 

v. 

GINA McCARTHY, Administrator, 

United States Environmental Protection 

Agency, 

Defendant. 

Case No.: 3:13-cv-3953-SI 

PLAINTIFFS’ AND EPA’S NOTICE OF 

LODGING PROPOSED CONSENT 

DECREE AND MOTION TO STAY 

PROCEEDINGS UNTIL AUGUST 1, 2014 

 

 Plaintiffs Sierra Club and the Natural Resources Defense Council (collectively, “Sierra 

Club”) and Defendant Gina McCarthy, Administrator of the Environmental Protection Agency 

(“EPA”) hereby lodge the attached proposed Consent Decree with the Court. See Exhibit 1. 

 The proposed Consent Decree should not be signed or entered by the Court at this time. 

As further explained below, the proposed Consent Decree must first undergo public notice and 

comment before EPA can determine whether to withdraw or withhold its consent. 

 If the proposed Consent Decree is finalized and entered, the Court will not need to resolve 

the pending competing proposals for the remedy in this case. Accordingly, Sierra Club and EPA 

jointly move for a brief stay of further proceedings until August 1, 2014 to allow EPA to 

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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

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CASE NO. 3:13-cv-3953-SI 

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complete the notice and comment process described below. Sierra Club and EPA further request 

that the May 30, 2014 hearing on remedy be taken off the Court calendar. 

 A limited stay is necessary to allow EPA to follow the requirements of the Clean Air Act 

for providing public notice prior to entering into a consent decree. Pursuant to 42 U.S.C. 

§ 7413(g) and Paragraph 16 of the proposed Consent Decree, after the proposed Consent Decree 

is lodged with the Court, EPA will submit a notice of the proposed Consent Decree for 

publication in the Federal Register, and will then accept public comment for thirty days. After 

the close of the public comment period, EPA must promptly review any comments received and 

may withdraw or withhold consent to the proposed decree for reasons described in section 

7413(g). Should this situation arise, EPA will consult all other parties and promptly file a motion 

to govern further proceedings no later than August 1, 2014. 

 Pursuant to Local Rule 7-11, Sierra Club and EPA state the following in support of their 

motion for a stay until August 1, 2014: 

1. Sierra Club filed this action under section 304(a)(2) of the Clean Air Act (“the 

citizen suit provision”), 42 U.S.C. § 7604(a)(2), seeking to compel EPA to complete the 

designations of those areas of the country that are attaining or not attaining the 2010 revised 

primary sulfur dioxide (“SO2”) national ambient air quality standard (“NAAQS”), or are 

unclassifiable. 

2. Sierra Club moved on October 29, 2013 for summary judgment on EPA’s liability 

for failure to complete the designations, and EPA did not dispute that it has not fully discharged 

its statutory duty to promulgate the remaining designations. ECF nos. 55 & 63. 

3. The Court entered summary judgment in favor of Sierra Club as to EPA’s liability 

by order dated December 8, 2013. ECF No. 79. 

4. In the same order, the Court granted two motions for permissive intervention filed 

by several states (collectively, “Plaintiff-Intervenors”) claiming a similar interest in compelling 

EPA to complete the designations by a date certain. Id.

5. The Court set a briefing schedule on the question of the appropriate remedy to 

order for EPA’s violation and ordered a hearing on remedy for May 30, 2014. ECF Nos. 85 & 

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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

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CASE NO. 3:13-cv-3953-SI 

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85-1. Upon motion by certain intervenor states, ECF No. 88, the Court adopted an amended 

briefing schedule that extended the due dates for the remedy briefs but did not change the hearing 

date. ECF No. 89. 

6. The briefing schedule allowed for a period of time for the parties to confer on 

remedy, and the parties began discussing remedy proposals beginning in December 2013. As a 

group, all parties have continued to discuss settlement simultaneously with briefing remedy. EPA 

has also held separate settlement discussions with Sierra Club, and with Plaintiff-Intervenors the 

States of Arizona, Nevada, North Carolina, North Dakota, and Texas, the Commonwealth of 

Kentucky Energy and Environment Cabinet, and the State of Louisiana Department of 

Environmental Quality. 

7. The proposed Consent Decree would set a binding and enforceable schedule for 

EPA to complete SO2 designations for all remaining areas of the country and fulfill EPA’s 

obligations under 42 U.S.C. § 7407(d)(1)-(2). Entry of the proposed Consent Decree would 

foreclose the need for the Court to hear the parties’ competing remedy proposals and order a 

remedy because the proposed Consent Decree would impose an agreed-upon remedy for EPA’s 

failure to perform its nondiscretionary duty to complete all SO2 designations within three years of 

revising the SO2 NAAQS. Therefore, staying this litigation and removing the remedy hearing 

from the Court’s calendar would promote the interest in resolving disputes through settlement and 

would avoid the waste of judicial resources. Ahern v. Cent. Pac. Freight Lines, 846 F.2d 47, 48 

(9th Cir. 1988) (“It is well recognized that settlement agreements are judicially favored as a 

matter of sound public policy. Settlement agreements conserve judicial time and limit expensive 

litigation.”). See also, e.g., WildEarth Guardians v. Jackson, No. 11-CV-00001-CMA-MEH, 

2011 WL 4485964, at *3 (D. Colo. Sept. 27, 2011) (in suit by environmental groups against EPA 

for failure to perform nondiscretionary duty under Clean Air Act, court granted a stay on all 

proceedings during the 42 U.S.C. § 7413(g) public comment period). 

8. Plaintiff-Intervenors will not be prejudiced by a brief, time-limited stay of 

proceedings. Plaintiff-Intervenors will have the opportunity to fully express their views on the 

proposed settlement by submitting public comments to EPA through the 42 U.S.C. § 7413(g) 

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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

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CASE NO. 3:13-cv-3953-SI 

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process. Plaintiff-Intervenors also may state any objections they may have to entry of the 

proposed Consent Decree by filing in this action in response to a motion to enter the proposed 

Consent Decree. Sierra Club and EPA shared the material terms of this proposed Consent Decree 

with Plaintiff-Intervenors and held a teleconference with Plaintiff-Intervenors to provide them 

with the opportunity to join in this proposed Consent Decree prior to its lodging. Further, 

Plaintiff-Intervenors are not harmed by a lack of designation of any areas in their respective states 

during this time, as any failure to designate on the part of EPA results in states being in the same 

regulatory position as if the undesignated areas are designated attainment or unclassifiable. Upon 

EPA’s promulgation of the SO2 NAAQS in 2010 and in advance of any designations, the states 

became subject to the initial State Implementation Plan requirements of Clean Air Act Section 

110(a)(1)-(2), 42 U.S.C. § 7410(a)(1)-(2), and to the Prevention of Significant Deterioration 

requirements of Sections 161-165, 42 U.S.C. §§ 7471-7475. Only if EPA designates the 

remaining undesignated areas as nonattainment or takes other action outside of the designations 

context – i.e., only if EPA takes a future action that has a certain result or outcome that cannot be 

compelled in this litigation – would that situation change. 

9. The previous time modifications in this action are as follows. On October 2, 2013, 

the Court granted EPA’s unopposed request for a stay of the deadlines for responses to the 

motions to intervene due to the lapse in appropriations until ten days following the restoration of 

funding. ECF No. 37. On October 16, 2013, the Court vacated the hearing date on the motions to 

intervene due to the lapse in appropriations. ECF No. 43. On November 4, 2013, the Court 

granted the Plaintiff-Intervenors’ unopposed motion to extend the time for Plaintiff-Intervenors to 

file replies in support of their motions to intervene by fourteen days. ECF No. 61. On December 

26, 2013, the Court granted the parties’ stipulated request to extend the deadline for filing a 

briefing schedule on remedy to January 14, 2014. ECF No. 81. On January 17, 2014, the Court 

granted the parties’ stipulated request to continue the case management conference from February 

7, 2014 to July 25, 2014, and to continue ADR-related deadlines to July 3, 2014. On March 13, 

2014, the Court granted Plaintiff-Intervenors’ request to extend the deadlines for filing remedy 

briefs. ECF No. 89. 

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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

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10. On May 16, 2014 counsel for Plaintiffs and EPAconferred with counsel for 

Plaintiff-Intervenors pursuant to Local Rule 7-11, who indicated that they intend to oppose this 

motion for a stay and to take the May 30, 2014 hearing off calendar, and will expedite filing of 

their responses to this motion. 

 For the reasons stated above, Plaintiffs and EPA request that the Court stay further 

proceedings until August 1, 2014 while the proposed Consent Decree is made available for public 

comment, and take the May 30, 2014 hearing on remedy off the Court calendar. 

DATED: May 19, 2014 Respectfully submitted, 

/s/ Nicholas Morales NICHOLAS MORALES, Admitted Pro Hac Vice 

DAVID S. BARON, Admitted Pro Hac Vice 

Earthjustice 

1625 Massachusetts Ave, STE 702 

Washington, DC 20036 

dbaron@earthjustice.org; nmorales@earthjustice.org 

Tel: 202-667-4500/Fax: 202-667-2356 

PAUL R. CORT, State Bar No. 184336 

Earthjustice 

50 California Street 

San Francisco, CA 94111 

pcort@earthjustice.org; igutierrez@earthjustice.org 

Tel: 415-217-2000/Fax: 415-217-2040 

Counsel for Plaintiffs 

ZACHARY M. FABISH, State Bar No. 247535 

Staff Attorney 

The Sierra Club 

50 F Street, NW - 8th Floor 

Washington, DC 20001 

zachary.fabish@sierraclub.org 

Tel: 202-675-7917/Fax: 202-547-6009 

Counsel for Plaintiff Sierra Club 

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PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT DECREE AND MOTION TO STAY 

PROCEEDINGS UNTIL AUGUST 1, 2014 

CASE NO. 3:13-cv-3953-SI 

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 SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

 /s/ Martha C. Mann 

 MARTHA C. MANN 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O Box 7611 

Washington, DC 20044 

Tel: (202) 616-7568 (Rave) 

 (202) 514-2664 (Mann) 

 Fax: (202) 514-8865 

 martha.mann@usdoj.gov 

 

Counsel for Administrator McCarthy 

Case3:13-cv-03953-SI Document102 Filed05/19/14 Page6 of 6
Attachment 1 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page1 of 11
[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

MARTHA C. MANN 

U.S. Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2664 

Fax: (202) 514-8865 

Email: martha.mann@usdoj.gov 

 Attorneys for Defendant Gina McCarthy, 

Administrator, United States 

Environmental Protection Agency 

[Additional counsel listed on signature page] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SIERRA CLUB and NATURAL 

RESOURCES DEFENSE COUNCIL, 

 Plaintiffs, 

 

 v. 

GINA MCCARTHY, in her official 

capacity as Administrator of the United 

States Environmental Protection Agency, 

 Defendant. 

Case No.: 3:13-cv-3953-SI 

[PROPOSED] CONSENT DECREE 

 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page2 of 11
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[PROPOSED] CONSENT DECREE 

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WHEREAS, on August 26, 2013, Plaintiffs Sierra Club and Natural Resources Defense 

Council (“Plaintiffs”) filed the complaint (“Complaint”) in the above-captioned matter against 

Defendant Regina McCarthy in her official capacity as Administrator of the United States 

Environmental Protection Agency (“EPA”) alleging that EPA has failed to undertake a certain 

nondiscretionary duty under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, and that 

such alleged failure is actionable under section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2); 

WHEREAS, within one year after promulgation of a revised national ambient air 

quality standard (“NAAQS”), section 107(d)(1)(A) of the CAA directs states to submit lists of 

initial designations of all areas, or portions thereof, as attainment, nonattainment, or 

unclassifiable for the revised NAAQS, 42 U.S.C. § 7407(d)(1)(A); 

WHEREAS, EPA is required to promulgate designations for all areas of the country 

(including tribal areas and certain U.S. territories) within two years of promulgation of the 

revised NAAQS, or within three years if EPA has insufficient information to promulgate the 

designations within two years, pursuant to section 107(d)(1)(B) of the CAA, 42 U.S.C. 

§ 7407(d)(1)(B); 

WHEREAS, EPA is required to publish a notice in the Federal Register promulgating 

designations, pursuant to section 107(d)(2)(A) of the CAA, 42 U.S.C. § 7407(d)(2)(A); 

WHEREAS, EPA revised the primary NAAQS for sulfur dioxide (“SO2”) on June 2, 

2010, see 75 Fed. Reg. 35,520 (June 22, 2010); 

WHEREAS, states were directed to submit their area designations for the 2010 revised 

primary SO2 NAAQS by June 2, 2011, see 75 Fed. Reg. at 35,385/col. 2; 

WHEREAS, on August 3, 2012, EPA invoked the additional year to issue designations, 

see 77 Fed. Reg. 46,295 (Aug. 3, 2012); 

WHEREAS, on August 5, 2013, EPA published designations under the 2010 revised 

primary SO2 NAAQS for twenty-nine areas in sixteen states, thus removing such areas from 

the potential scope of the above-captioned matter, see 78 Fed. Reg. 47,191 (Aug. 5, 2013); 

WHEREAS, the Complaint alleges that EPA has a nondiscretionary duty to promulgate 

and publish the remaining area designations for the 2010 revised primary SO2 NAAQS within 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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the time lines set forth in section 107(d)(1)(B) of the CAA, 42 U.S.C. § 7407(d)(1)(B), 

(d)(2)(A); 

WHEREAS, on October 29, 2013, Plaintiffs filed a Motion for Summary Judgment on 

the issue of liability in the above-captioned matter, reserving for future briefing the issue of 

remedy; 

WHEREAS, on November 12, 2013, EPA filed its response to Plaintiffs’ Motion for 

Summary Judgment and did not dispute the claim of liability; 

WHEREAS, on December 6, 2013, the Court granted Plaintiffs’ Motion for Summary 

Judgment, and directed the parties to meet and confer on the remedy; 

WHEREAS, the Plaintiffs and EPA have agreed to a settlement of this action; 

WHEREAS, the Plaintiffs and EPA, by entering into this Consent Decree, do not waive 

or limit any claim or defense, on any grounds, related to any EPA final action; 

WHEREAS, the Plaintiffs and EPA consider this Consent Decree to be an adequate and 

equitable resolution of all the claims in this matter; 

WHEREAS, it is in the interest of the public, the Plaintiffs and EPA, and judicial 

economy to resolve this matter without unnecessary protracted litigation; 

WHEREAS, the Administrator has proposed and anticipates promulgating a 

rulemaking that would direct states to conduct additional information collection and analyses 

regarding certain stationary sources of SO2, for purposes of informing future area designations 

under the 2010 revised primary SO2 NAAQS, see 79 Fed. Reg. 27,449 (May 13, 2014); 

WHEREAS, the Plaintiffs and EPA agree that this Court has jurisdiction over this 

matter pursuant to the citizen suit provision of section 304(a)(2) of the CAA, 42 U.S.C. 

§ 7604(a)(2); 

WHEREAS, the Court, by entering this Consent Decree, finds that the Consent Decree 

is fair, reasonable, in the public interest, and consistent with the CAA; 

NOW THEREFORE, before the taking of testimony, without trial or determination of 

any additional issue of fact or law that the Court has not already addressed in this matter, and 

upon consent of the Plaintiffs and EPA, it is hereby ordered, adjudged and decreed, that: 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page4 of 11
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[PROPOSED] CONSENT DECREE 

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1. EPA shall sign for publication in the Federal Register no later than sixteen (16) 

months from the date of this Court’s entry of this Order a notice of EPA’s promulgation of 

designations for the 2010 revised primary SO2 NAAQS pursuant to section 107(d) of the CAA, 

and within ten (10) business days following such signature deliver the notice to the Office of 

the Federal Register for review and prompt publication, for remaining undesignated areas 

which: 

(a) based on air quality monitoring in the three (3) full calendar years preceding 

such deadline have monitored violations of the 2010 revised primary SO2

NAAQS; or 

(b) contain any stationary source that has not been “announced for retirement” 

pursuant to subparagraph (c) by the date of this Consent Decree, and that, 

according to the data in EPA’s Air Markets Database, either (1) emitted more 

than 16,000 tons of SO2 in 2012, or (2) emitted more than 2,600 tons of SO2 and 

had an annual average emission rate of 0.45 lbs SO2/Mmbtu or higher in 2012; 

where 

(c) “announced for retirement” means any stationary source in the United States 

with a coal-fired unit that as of January 1, 2010, had a capacity of over five (5) 

megawatts (MW) and that has announced that it will cease burning coal at that 

unit through a company public announcement, public utilities commission 

filing, consent decree, public legal settlement, final state or federal permit filing, 

or other similar means of communication. 

2. EPA shall sign for publication in the Federal Register no later than December 

31, 2017, a notice of EPA’s promulgation of designations for the 2010 revised primary SO2

NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following 

such signature deliver the notice to the Office of the Federal Register for review and prompt 

publication, for remaining undesignated areas in which, by January 1, 2017, states have not 

installed and begun operating a new SO2 monitoring network meeting EPA specifications 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page5 of 11
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[PROPOSED] CONSENT DECREE 

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referenced in EPA’s anticipated rulemaking directing states to collect and analyze additional 

information regarding SO2 emissions concentrations. 

3. EPA shall sign for publication in the Federal Register no later than December 

31, 2020, a notice of EPA’s promulgation of designations for the 2010 revised primary SO2

NAAQS pursuant to section 107(d) of the CAA, and within ten (10) business days following 

such signature deliver the notice to the Office of the Federal Register for review and 

publication, for all remaining undesignated areas. 

4. After EPA’s obligations under Paragraphs 1 through 3 have been completed, 

and after the notices required by Paragraphs 1 through 3 have been published in the Federal 

Register, EPA may move to terminate the Consent Decree. The Plaintiffs shall have fourteen 

(14) days in which to respond to such motion. 

5. Following delivery of the notices of promulgation of designations described in 

Paragraphs 1 through 3 to the Office of the Federal Register, EPA shall not take any action 

(other than is necessary to correct any typographical errors or other errors in form) to delay or 

otherwise interfere with publication of such notices in the Federal Register. EPA shall make 

available to the Plaintiffs copies of the notices within five (5) business days following 

signature by the Administrator. 

6. The Plaintiffs and EPA may extend the deadlines established in Paragraphs 1 

through 3 for a period of sixty (60) days or less by written stipulation executed by counsel for 

the Plaintiffs and EPA and filed with the Court. In addition, the deadlines established in 

Paragraphs 1 through 3 may be extended by the Court upon motion by any party to this 

Consent Decree for good cause shown, after consideration of any response by the non-moving 

party to this Consent Decree. Any party to this Consent Decree seeking to extend deadlines by 

motion and without stipulation must provide written notice to all other parties to this Consent 

Decree of the deadlines the party is seeking to extend at least ten (10) business days prior to 

filing with the Court such motion. No motion to extend a deadline shall be considered properly 

filed unless notice pursuant to this Paragraph is provided, or the moving party demonstrates 

why it could not have provided the advance written notice. 

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[PROPOSED] CONSENT DECREE 

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7. Nothing in this Consent Decree shall be construed to limit or modify the 

discretion accorded EPA by the CAA and by general principles of administrative law, 

including the discretion to alter, amend or revise any response and/or final action contemplated 

by this Consent Decree. EPA’s obligations to take the actions set forth in Paragraphs 1 through 

3 by the dates specified do not constitute limitations or modifications of EPA’s discretion 

within the meaning of this paragraph. 

8. Nothing in this Consent Decree shall be construed to confer upon the District 

Court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. 

Nothing in this Consent Decree shall be construed to confer upon the District Court jurisdiction 

to review any issues that are within the exclusive jurisdiction of the United States Court of 

Appeals pursuant to section 307(b)(1) of the CAA, 42 U.S.C. § 7607(b)(1). Nothing in the 

terms of this Consent Decree shall be construed to waive any remedies or defenses the parties 

may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 

9. This Court shall retain jurisdiction to enforce the terms of this Consent Decree 

and to consider any requests for costs of litigation, including attorneys’ fees. 

10. In the event of a dispute between the parties to this Consent Decree 

concerning the interpretation or implementation of any aspect of this Consent Decree, the 

disputing party shall provide the other party with a written notice outlining the nature of the 

dispute and requesting informal negotiations. If the parties cannot reach an agreed-upon 

resolution within ten (10) business days after receipt of notice, any party may move the Court 

to resolve the dispute. 

11. No motion or other proceeding seeking to enforce this Consent Decree shall 

be considered properly filed, unless the Plaintiffs have followed the procedure set forth in 

Paragraph 10. 

12. The United States, on behalf of EPA, agrees that the Plaintiffs are entitled to 

recover their costs of litigation (including reasonable attorneys’ fees) (“litigation costs”) 

incurred in this matter pursuant to 42 U.S.C. § 7604(d). The deadline for filing a motion for 

litigation costs is hereby extended until 120 days after entry of this Consent Decree by the 

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[PROPOSED] CONSENT DECREE 

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Court. During this time, the Plaintiffs and EPA shall seek to resolve informally any claim for 

litigation costs, and if they cannot reach a resolution, the Plaintiffs may seek such litigation 

costs from the Court. The Court shall retain jurisdiction to resolve any request for litigation 

costs. 

13. The obligations imposed upon EPA by this Consent Decree may only be 

undertaken using appropriated funds. No provisions of this Consent Decree shall be 

interpreted as or constitute a commitment or requirement that EPA obligate or pay funds in 

contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal 

law. 

14. The parties recognize that the possibility exists that a lapse in the 

appropriations that fund EPA could delay compliance with the timetables contained in this 

Consent Decree. Should a delay occur due to a lapse in appropriations, any deadlines 

occurring within ninety (90) days of the termination of the delay shall be extended one day for 

each day of the delay. EPA will provide Plaintiffs with notice as soon as is reasonably possible 

under the circumstances in the event that EPA invokes this Paragraph of the Consent Decree 

and will provide Plaintiffs with an explanation of EPA's basis for invoking this Paragraph. 

Plaintiffs may challenge the invocation of this Paragraph of the Consent Decree under the 

dispute resolution terms of this Consent Decree, and EPA shall bear the burden of justifying its 

invocation of this Paragraph. 

15. The Plaintiffs and EPA shall not challenge the terms of this Consent Decree or 

this Court’s jurisdiction to enter this Consent Decree. 

16. The Plaintiffs and EPA agree and acknowledge that before this Consent 

Decree is entered by the Court, EPA must provide notice of this Consent Decree in the Federal 

Register and provide an opportunity for public comment pursuant to section 113(g) of the 

CAA, 42 U.S.C. § 7413(g). After this Consent Decree has undergone notice and comment, the 

Administrator and/or the Attorney General, as appropriate, shall promptly consider any such 

written comments in determining whether to withdraw or withhold their consent to the Consent 

Decree, in accordance with section 113(g) of the CAA. If the Administrator and/or the 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page8 of 11
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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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Attorney General do not elect to withdraw and withhold their consent, EPA shall promptly file 

a motion that requests the Court to enter this Consent Decree. 

17. Any notices required or provided by this Consent Decree shall be made in 

writing, via facsimile, e-mail, or other means, and sent to the following: 

For Plaintiffs: 

 Nicholas Morales 

 David S. Baron 

 Earthjustice 

 1625 Massachusetts Ave., STE 702 

 Washington, DC 20036 

 nmorales@earthjustice.org 

 dbaron@earthjustice.org 

 Fax: 202-667-2356 

 Zachary M. Fabish 

 The Sierra Club 

 50 F Street, NW – 8th Floor 

 Washington, DC 20001 

 zachary.fabish@sierraclub.org 

 Fax: 202-547-6009 

 Emily K. Davis 

 Natural Resources Defense Council 

 1152 15th Street, NW, Suite 300 

 Washington, DC 20005 

 edavis@nrdc.org 

 Fax: 202-289-1060 

For Defendant: 

 

 Martha C. Mann 

 United States Department of Justice 

 Environmental Defense Section 

 P.O. Box 7611 

 Washington, DC 20044 

 martha.mann@usdoj.gov 

 Fax: 202-514-8865 

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[PROPOSED] CONSENT DECREE 

CASE NO.: 3:13-cv-3953-SI 

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 Michael Thrift 

 United States Environmental Protection Agency 

 Office of General Counsel 

 Air and Radiation Law Office (2344-A) 

 1200 Pennsylvania Avenue NW 

 Washington, DC 20460 

 thrift.mike@epa.gov 

18. The undersigned representatives of each party to this Consent Decree certify 

that they are fully authorized by the party that they represent to bind that party to the terms of 

this Consent Decree. 

COUNSEL FOR PLAINTIFFS: 

Dated: 

NICHOLAS MORALES, Admitted Pro Hac Vice 

DAVID S. BARON, Admitted Pro Hac Vice 

Earthjustice 

1625 Massachusetts Ave, STE 702 

Washington, DC 20036 

dbaron@earthjustice.org, nmorales@earthjustice.org

Tel: 202-667-4500/Fax: 202-667-2356 

 PAUL R. CORT, State Bar No. 184336 

Earthjustice 

50 California Street 

San Francisco, CA 94111 

pcort@earthjustice.org igutierrez@earthjustice.org

Tel: 415-217-2000/Fax: 415-217-2040 

 ZACHARY M. FABISH, State Bar No. 247535 

Staff Attorney 

The Sierra Club 

50 F Street, NW - 8th Floor 

Washington, DC 20001 

zachary.fabish@sierraclub.org

Tel: 202-675-7917/Fax: 202-547-6009 

 

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[PROPOSED] CONSENT DECREE 

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COUNSEL FOR DEFENDANT: 

Dated: 

 SAM HIRSCH 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

MARTHA C. MANN 

United States Department of Justice 

Environment & Natural Resources Division 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2664 

E-mail: martha.mann@usdoj.gov

Counsel for Defendant EPA 

SO ORDERED on this _____ day of _____________________, 2014. 

___________________________________ 

SUSAN ILLSTON 

United States District Judge 

Case3:13-cv-03953-SI Document102-1 Filed05/19/14 Page11 of 11
(PROPOSED) ORDER GRANTING PLAINTIFFS’ AND EPA’S NOTICE OF LODGING PROPOSED CONSENT 

DECREE AND MOTION TO STAY PROCEEDINGS UNTIL AUGUST 1, 2014 

CASE NO. 3:13-CV-03953 SI 

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SAM HIRSCH 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

MARTHA C. MANN 

U.S. Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-2664 

Fax: (202) 514-8865 

Email: martha.mann@usdoj.gov 

 

Attorneys for Defendant Gina McCarthy, 

Administrator, United States 

Environmental Protection Agency 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SIERRA CLUB and NATURAL RESOURCES 

DEFENSE COUNCIL, 

 Plaintiffs, 

 v. 

GINA MCCARTHY, in her official capacity as 

Administrator of the United States Environmental 

Protection Agency, 

 Defendant. 

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Case No: 3:13-cv-03953 SI 

(PROPOSED) ORDER GRANTING 

PLAINTIFFS’ AND EPA’S NOTICE OF 

LODGING PROPOSED CONSENT 

DECREE AND MOTION TO STAY 

PROCEEDINGS UNTIL AUGUST 1, 2014 

 

 

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 On May 19, 2014, Plaintiffs and Defendant filed notice lodging a proposed Consent Decree, 

and jointly moved for a stay of proceedings until August 1, 2014 to allow Defendant to follow the 

requirements of the Clean Air Act for providing public notice prior to entering into a consent decree. 

 Having reviewed Plaintiffs’ and Defendant’s joint motion, and considered any responses to 

it, this Court hereby grants the motion. Accordingly, this matter shall be stayed until August 1, 

2014, by which date Defendant shall file a motion for entry of a proposed Consent Decree or, 

alternatively, a motion to govern future proceedings. All pending deadlines shall be continued. The 

hearing scheduled for May 30, 2014 shall be taken off the Court’s calendar. 

 IT IS SO ORDERED. 

DATED: ___________, 2014 _________________________________ 

 United States District Judge 

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